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The US Department of Justice (DOJ) Antitrust Division (the Division) offers leniency to the first company to contact the Division and acknowledge participation in an antitrust conspiracy such as price-fixing, bid-rigging or market allocation. The Division’s leniency program requires the applicant to fully cooperate with the government’s investigation and to candidly acknowledge its wrongdoing, among other requirements. In return, the successful applicant receives a pass from corporate criminal exposure and also receives immunity for its officers, directors and executives.

The leniency program is the crown jewel of the Division’s enforcement regime because of its demonstrated success generating new cases. The program’s ability to attract applicants is based on its transparency and predictability. The level of trust required for companies to air their criminal wrongdoing to prosecuting authorities is not automatic. It has been earned over the years by a program that keeps its promises and works as designed. Therefore, changes to the program are closely watched by the defense bar for any perceived lessening of immunity coverage.

The Division accepts two kinds of leniency applications: Type A, where the Division knows nothing of the matter until the applicant approaches it; and Type B, where the Division has some knowledge of the matter but not enough to bring a case. Applications under the two types provide nearly identical benefits to the applicant except that the Division has retained discretion on whether to extend leniency to executives under Type B. In the past, the Division routinely exercised this discretion to grant coverage for Type B applicants’ executives.

In January, we covered a change to the Frequently Asked Questions Regarding the Division’s Leniency Policy (FAQ) that appeared to narrow the coverage for executives under Type B. The new language stated that the Division “may exercise its discretion to exclude from [coverage] those current directors, officers, and employees who are determined to be highly culpable” and replaced language stating that leniency would “ordinarily” be granted as it is in a Type A context. As we noted at the time, the lack of definition of “highly culpable” and the lack of guidance on how the Division would exercise its discretion left questions calling for clarification.

WHAT HAPPENED:

In remarks to the American Bar Association Section of Antitrust Law, Acting Assistant Attorney General (AAG) Brent Snyder clarified the January 2017 changes to the Type B Leniency FAQ. He confirmed that–because the Division had always retained discretion under the old policy–previously-understood leniency coverage for officers, directors and employees had not changed. He also provided guidance as to how decisions under the policy would be communicated to applicants.

Acting AAG Snyder stated that he took seriously the concerns that the defense bar had expressed about coverage for individuals under Type B. He confirmed that it was not the Division’s intention to change the prevailing practice of making leniency generally available to such individuals. However, in cases where the Division’s investigation is significantly advanced because of its own independent work, the Division retains the discretion to withhold leniency for any executives whom it could already prosecute by virtue of this work. The Division will let companies know up-front if these circumstances apply.

It is never a comfortable prospect for a company to contemplate self-reporting an antitrust crime to the authorities, even with amnesty on offer; however, with billion-dollar fines and ever-increasing jail terms, leniency continues to be the most rational option.

Type A and Type B leniency have always provided nearly identical benefits to companies and their executives. Type B remains a good deal despite the recent FAQ revisions.

As Acting AAG Snyder’s remarks make clear, the scope of Type B leniency for individuals has not changed. A company’s decision to communicate to the Division about a Type B leniency marker makes the company’s executives no worse off than they would have been otherwise. By definition in a Type B context, the Division already has an investigation open and is likely looking closely at those executives. By seeking a marker, the company opens the possibility of leniency for its current officers, directors and executives.

The Division will let a company know at or near the marker stage whether any of its executives are at risk of carve-out from the corporate leniency grant, allowing the company to apply for leniency with its eyes open.

Thus, companies should not hold back applying for leniency out of concern for lack of coverage for highly culpable executives under Type B.

Acting AAG Snyder’s comments were a welcome reminder of the transparency and continuity that have served the leniency program well.